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special to the national law journal John Hasnas is an associate professor of law at George Mason University. He is currently visiting at the Washington College of Law at American University. A month has passed since the U.S. Supreme Court heard oral argument in the cases challenging the University of Michigan’s admissions policies. Now that the cacophony has died down, we can ask whether the alleged educational values of a diverse student body outweigh the dangers inherent in allowing government agents to make race-based decisions. Much of the April 1 argument addressed the issue of quotas and the value of diversity. Nevertheless, the court would be well-advised to pay little attention to either in reaching its decision. Even if diversity is a genuine educational value that can be realized without quotas, there are still important reasons why public, as opposed to private, universities should be barred from pursuing it by race-conscious means. In the first place, there is a fundamental moral difference between private and governmental action. Individuals have lives to live, which requires them to form and act on value judgments. For life to be meaningful, individuals must have the freedom to act in accordance with their personal commitments and beliefs. Accordingly, as long as they are not attempting to demean, exploit or oppress others, individuals do nothing wrong in pursuing these commitments and beliefs, even if they treat the members of different groups differently in doing so. Government, in contrast, is not alive. It has no personal commitments or beliefs that entitle it to prefer the interests of some citizens over others. Government is an agent of all of its citizens. And as the agent of all, it has a duty to act in the interest of all; a duty it violates by advancing the interests of some groups over others. Government should not be permitted to treat members of different racial or ethnic groups differently, not because there is anything inherently wrong in doing so, but because government’s duty to act in the interest of all prohibits it from advancing or retarding the interests of these or any other particular subgroups of the citizenry. Thus, state universities should be not be permitted to pursue diversity by the race-conscious means that private individuals, and hence private universities, may employ. Secondly, the lessons of political logic and history warn against investing the government with the power to make even seemingly benign racial and ethnic distinctions. No matter how great the commitment to racial and ethnic justice is in the abstract, government is comprised of politicians and administrators who must and do respond to political influences, seek votes and attempt to advance their careers. Unfortunately, this can be done by taking advantage of groups with relatively little political power. In the political marketplace, the incentive always exists for politicians and administrators to amass political capital by scapegoating or otherwise exploiting socially disfavored minorities. History provides ample evidence of these incentives at work. The 14th Amendment was adopted in 1868 for the explicit purpose of benefiting former slaves. Few would disagree that the amendment originally permitted benign race-conscious governmental action, since the same Congress that passed it also adopted measures providing benefits exclusively to African-Americans (such as the Freedman’s Bureau Act). Yet in 1896, the Supreme Court decided Plessy v. Ferguson, upholding the doctrine of “separate but equal” that explicitly authorized mandatory racial segregation. In only 28 years, political incentives had transformed government’s ability to differentiate on the basis of race from a benign to an oppressive power. Power and temptation The siren song of using government power to do good blinds us to the risks posed by the powerful political incentives to engage in racial and ethnic exploitation. For this reason, we dare not loose ourselves from the mast of a color-blind Constitution. The wisdom embodied in Brown v. Board of Education was not that there was something inherently wrong with treating people differently on the basis of race, but that because government could not be trusted to use this power properly, it should be denied it altogether. The university’s admissions policies, no matter how well-intended today, are unacceptable not because there is anything wrong in seeking a diverse student body, but because the university is a governmental agency that must be denied the power to make racial and ethnic distinctions among citizens as a prophylactic against the strong political incentives to abuse this power. As the guardian of our constitutional liberties, the court’s duty is to consider how public institutions are likely to act over the long term; say, around 28 years. This is why the court should reaffirm the wisdom of Brown by declaring the University of Michigan’s affirmative action policies unconstitutional.

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